This Article sets out to pinpoint the locus of control over the police. Running the police force is one of the most important tasks assigned to local governments in America. Yet heretofore policing has not been analyzed through the lens of local government law. Through a review of state statutes, this Article reveals that the reigning notion that the police are local oversimplifies a complex legal reality. Local governments are mostly empowered to choose to establish (or not establish) a police force and to define the force’s size and role. However, they are mostly not afforded concomitant full powers over the police workforce. Issues pertaining to officers’ employment status—hiring, service terms, and, most significantly, removal—are heavily regulated through state mandates. Because these mandates are almost always geared toward aggressively protecting officers’ rights, local governments are left largely bereft of means to discipline officers who misbehave. This division of powers—whereby the local government mostly controls the objectives and functions of a public service but does not enjoy similar levels of control over the workforce providing the service—is unique to policing. Powers over other important local functions do not follow this pattern. Moreover, local government law theories cannot justify this division of powers that withholds from the local government most powers over officers’ employment patterns. A principled analysis indicates that local control of the police workforce would in many instances contribute to economic efficiency and to democratic participation, the two values normally associated with local governance. The Article thus concludes by suggesting multiple doctrinal reforms that could begin to realign powers over the police force. Such reforms are of particular importance today as our system continues to grapple with the challenge of widespread police violence.
Professor of Law, Northwestern University Pritzker School of Law. For comments and thoughts, I am grateful to Zach Clopton, David Dana, Nestor Davidson, Mary Fan, Barry Friedman, Maria Ponomarenko, Max Schanzenbach, Erin Scharff, and Seth Stoughton, as well as the participants at the Law of Policing Conference 2023 at the University of Chicago Law School and workshops at the Northwestern University School of Law and the Faculty of Law at the University of Haifa. Finally, special thanks to Kathleen Naccarato and Phil Rich for truly extraordinary assistance with research.